December 17, 2005
from - RSA
Over the past couple of days, liberal blogs have focused on the New York Times story about the President having authorized wiretaps without warrants on communications in the U.S., apparently a significant departure from past practice. Lacking much background in history and politics, I didn't recognize what was important about this at first. "Was anyone harmed?" I thought. Perhaps not, but that's to some extent irrelevant: the problem is that our governing principles have been harmed.
I think it may be easiest to see this by looking at conservative opinion makers, who seem to be brushing off the issue, saying, for example, that we should go after the whistle blowers (in striking contrast to their general reaction to the Plame case.) I've had worthwhile discussions--arguments, really--with conservatives in the past about our political differences. These were what we might call "principled conservatives", who seem to be going the way of, oh, Arctic ice these days. I don't see many principled justifications put forward in support of spying on Americans (aside from arguments that Bush's actions do not cross the line into illegality). Most fall into the following categories:
- Bush says that the program is narrowly designed. In other words, the NSA only eavesdrops on people with a clear link to al Qaeda or related terrorist groups. But this is farcical on the face of it. The New York Times reports that hundreds to thousands of people are on or have been on the NSA's watch list. Does anyone believe that there that many serious terrorist sympathizers in the U.S.? If there really are, they are a pretty incompetent bunch.
- Bush says that the program bypasses judicial red tape, for the purpose of timeliness. As many legal observers have noted, FISA almost never refuses to grant warrants, the system is organized for fast response, and the Justice Department has the legal option of getting warrants approved up to three days after they've carried out their monitoring. Red tape is a red herring.
- Security comes before civil liberties. Some conservative bloggers have honestly noted that there's a tradeoff between security and freedom. They seem to be saying that even if the monitoring of U.S. citizens is not strictly legal, it's justified in the current circumstances. I think that a natural implication of this view is that the Bill of Rights should need to be amended to say that if the President judges that searches are appropriate, they can be carried out without judicial oversight. I haven't seen this argument made, and I doubt that it will be.
- If you aren't doing anything wrong, you have nothing to worry about. This is an everyman argument, and appeals to an authoritarian streak in many conservatives. Being stopped on the street and asked for your papers by the police? Respectable people don't find themselves in such situations. (Even the offense of "driving while black" is sometimes justified in a similar way.) The answer to this is pretty straightforward: Would you be as happy with secret decisions in the executive branch if it were President Hillary Clinton making them? I doubt it. If the person of the President makes a difference in judging whether actions are justified or not, then we're moving away from a government of law. Statues of Justice are blindfolded for a good reason.
Posted by RSA at December 17, 2005 11:16 PM